Director of Public Prosecutions v McInnes

[2016] VCC 255

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 15-02017

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW McINNES

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	25 February 2016
DATE OF SENTENCE:	26 February 2016
CASE MAY BE CITED AS:	DPP v McInnes
MEDIUM NEUTRAL CITATION:	[2016] VCC 255

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M.A. Mahady	Office of Public Prosecutions
For the Offender	Mr N.A. Hutton	Stary Norton Halphen

HIS HONOUR: 

1Mr McInnes, you can remain seated.  In June 2015, though the efforts of the Australian Customs Service, two parcels were intercepted containing a total of 29 litres of the drug precursor chemical known as 1,4-Butanediol.  You had made an online order for this substance from a German laboratory.

2As it turns out you had at an earlier point in 2015 received and sold a smaller amount of the drug. 

3Delivery of the 29 litres to your house was attempted but you did not actually take possession of it.  The last attempt was on 21 July 2015.

4On that day you were arrested at your home in Bell Park.  A small amount of ecstasy and LSD were found as well as a Victorian Police badge. 

5It was also discovered that you had bypassed the electricity meter.  You are an electrician by trade but I note this was to avoid paying electricity bills and not for other purposes that are sometimes seen in this court to enable hydroponic set-ups to grow cannabis.

6In any event, the chemical precursor, 1,4-Butanediol, can be metabolised as GHB, an illegal drug which can have serious health consequences for those who use it.  The quantity of the precursor that you attempted to possess is more than the prescribed quantity. 

7You pleaded guilty to attempting to possess more than the prescribed quantity of the precursor chemical.  The maximum term for that crime is two years imprisonment. 

8You made full admissions to the police.  Indeed, you told them of our illegal activities beyond what they knew.  Your admission as to the earlier sale of one litre of the precursor chemical would have been unknown but for your confession.  This significantly mitigates your offending.

9Your explanation was that the ecstasy and the LSD were for your own use and had been in the premises for some time.  They were small amounts.  As to the 1,4-Butanediol, you explained that your addiction to ice had caused you to be in significant debt.  You thought the sales of the precursor drug would get you out of financial trouble.

10So, once again, the courts are confronted with a qualified, hardworking tradesman, without any prior convictions, who has ruined his life by taking up ice.  Embarking on drug trafficking to overcome debts is very serious criminality. 

11The drug offences involving the 1,4-Butanediol require that significant weight be given to denunciation punishment and deterrence to others that might be minded to engage in entrepreneurial drug trafficking. 

12As to things in your favour, your counsel, Mr Hutton, in a comprehensive written and oral plea, pointed to a number of matters indicating that you have taken significant steps already to rehabilitate.

13Your hardworking parents raised you well and now continue to stand by you.

14You moved from school into an apprenticeship as an electrician where you did particularly well.  You remained in the same employment for over ten years becoming a trusted, valuable employee for the organisation that you worked for and commenced working for as a teenager.

15However, as your addiction to ice took its grip you became tardy and unreliable in your work; the opposite to your norm.  Your long term employer had little choice but to let you go. 

16You were already struggling with debts.  You had bought a house in your early 20s but now the mortgage was a real stretch.  Your credit card debt was many thousands, perhaps overall, you owed $30,000 and had the bank poised to foreclose on your house.

17In the midst of this you met your current girlfriend.  You revealed your addiction to her.  She set about helping you in every way possible.  I do add that you had sought out some help from Barwon Health at an earlier time but that came to nothing.  However, despite your girlfriend's efforts you were determined to tackle your debts on your own and came up with a scheme to deal with the precursor chemical by ordering it online and selling it here.

18You had by mid-2015 made significant advances in ending your own use of ice.  Since then you have continued in this vein. 

19On your arrest, you were remanded and remained in custody for 88 days, an experience that has taught you a harsh lesson. 

20Your release on bail included a condition requiring you to live at Odyssey House.  You engaged fully there and the letters from Odyssey House are testament to your efforts and contributions.  You have only recently come out of Odyssey House.  The plan is to solidify your rehabilitation with a lengthy outpatient program, ReGen, under the auspices of Moreland Hall. 

21Your girlfriend continues to stand by you, notwithstanding the gaol and the time at Odyssey House, which meant that you saw little of each other since mid-2015. 

22This ongoing support from your girlfriend is very important.  I take it, that should you fall back into drug use, you will likely lose much, if not, all the support that you have.  Just putting it bluntly, Mr McInnes, do not let down the good people that have stood by you. 

23You are not working at the moment but your skills and capacity are such that your prospects are solid.  You ought get back into the discipline of work as soon as possible. 

24All things considered, your prospects of complete reform, are good.  It is, of course, dependent on you resisting drugs. 

25Balancing the need for denunciation and deterrence, especially to others, and the need to facilitate your rehabilitation, I consider this as one of the few cases of this kind that can be adequately, appropriately and justly punished by a long community corrections order combined with a short term of imprisonment that you have already served.

26Such a sentence is authorised by the now, well-known principles, set out by the Court of Appeal in the guideline judgment of Bolton & Ors v The Queen.  The foremost of those is that a community corrections order can enhance your rehabilitation whereas further gaol will likely stifle it.  The community corrections orders will be onerous and thus properly punish you. 

27You, as a first offender, are entitled to ask for mercy in the form of a second chance.  The community would, in my view, be comfortable with that given your immediate and complete confession, your expressed remorse, your plea of guilty and your continued efforts to do all you can to overcome the root cause of your descent into crime. 

28Can you please stand, Mr McInnes.  What I intend to do is, with respect to Charge 1 and 2, impose an aggregate term of imprisonment of 88 days together with a three year community corrections order that will have a number of conditions attached to it.  Two hundred and 50 hours of unpaid work, assessment and treatment for drug addiction and or abuse and supervision. 

29You have already served 88 days in prison.  This figure having been reckoned, I will declare that that period of time of 88 days, is part of the sentence that I have just imposed.  I will ensure that this is entered into the records of this court so that the prison authorities are left in no doubt that you have served each and every day of the sentence of imprisonment that I imposed.

30As to the crimes of theft of the electricity and possession of the drugs, ecstasy and LSD and the handling of the stolen goods, for a first offender, notwithstanding the other crimes that you have committed, you would, in my view, have been likely to have been punished in the Magistrates' Court with a fine and I intend to impose such a penalty here. 

31You are convicted and fined $1,500.  I know that that will be onerous, given that you do not have a lot of money at the moment, but nonetheless you are to pay the fine.  I will give you three months from today to pay that fine.

32There are other orders that are sought in relation to the disposal of the drugs, both the ecstasy and LSD, and the precursor chemical. 

33There is a compensation order to the power company that lost $600 because of your efforts to bypass the meter.  Are you seeking a 464?

34MS MAHADY:  Yes, Your Honour.

35HIS HONOUR:  There is also an application that you provide a forensic sample.  That is a scraping of your mouth so that the authorities are able to extract DNA and keep that on a database.

36MS MAHADY:  Your Honour, there is also a forfeiture order for the cap. 

37HIS HONOUR:  There is also a further order relating to the cap.  Just sticking with the forensic sample.  You have a period of time from now but you have to get down to the police station and undertake the forensic procedure. It is a window, effectively, 28 days from now the window opens and you have got another 28 days or month to get to the police station.  Do you follow that?

38OFFENDER:  Yes.

39HIS HONOUR:  It is set out in the documents but the key thing for you is, that the authorities that are there to take your DNA sample, they are authorised to use reasonable force if you do not co-operate.  Just co-operate with it.

40Finally, had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a prison term of two years and six months with a minimum term of 18 months.

41MR HUTTON:  As Your Honour pleases.

42HIS HONOUR:  Is there anything further

43MS MAHADY:  No, Your Honour. 

44MR HUTTON:  No, Your Honour.

45HIS HONOUR:  Just be seated there, Mr McInnes.  The document will be brought to you by your solicitor which sets out all the conditions of the community corrections order. 

46I will just run through them.  The order lasts for three years and starts today and ends on 15 February 2019.  These are conditions that apply to everyone who is on a community corrections order.

47You must not commit another offence for which you could be imprisoned during the time the order is in force.  You should consider almost every offence you can think of is punishable by imprisonment.  Certainly, possession of a drug of dependence, like ecstasy or LSD or ice.  So just do not commit any offence during the time this order is in force for the next three years, but of course, do not commit any offence at all, ever.

48But if you commit one in the next three years you will be back here, I will remember this case and the mercy shown to you will not be repeated.

49You must comply with obligations under the Sentencing Regulations.  That means that the Office of Corrections, I am told, they will take a photograph so they know who you are when you go out to work and whatever, so co-operate with that process.  There may be others.

50You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre within two clear working days of this order starting.  Go today so that you have clear water to get to ReGen and that program next week. 

51You must let the community corrections officers know within two clear working days if you change your address or job.  You must not leave Victoria without getting permission to do so from the Office of Corrections and you must obey their lawful instructions.

52You must perform 250 hours, as I have said, over the three year period.  Simply this, just turn up when you are expected to, stay for as long as you are required to and do not leave until you are allowed to go and then get ready for the next one.  Do not muck the people about.  There will be many people on these orders that will not be as committed to their rehabilitation as you have been.  Certainly do not get tempted or persuaded by any of them because their commitment to ending their drug use might not be as firm as yours.  This is a point you have to resist.

53You must be under the supervision of the community corrections officer for the three years and you must undergo assessment and treatment for drug abuse and dependency as directed by the regional manager.  They will dovetail in with Moreland Hall, no doubt.  Sign that and it will bring the matter to an end.

54(Orders signed and acknowledged.)

55I should point out to you that I am granting the application that the prosecution have made in relation to the forensic sample because of the seriousness of the offending that you committed and the granting of the order is in the public interest. 

56MS MAHADY:  As Your Honour pleases. 

57HIS HONOUR:  Is there anything further required?

58MR HUTTON:  No, Your Honour.

59HIS HONOUR:  Thank you.  Mr McInnes, you will get a copy of the community corrections order in due course.  You are free to leave the dock now. 

60MR HUTTON:  Might I be excused, Your Honour?

61HIS HONOUR:  Yes, certainly, thank you very much for your assistance, both counsel, and in particular Mr Hutton moving things quickly, but you are free to go to Dandenong.  Thank you. 

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